Opinion
38850.
DECIDED OCTOBER 31, 1961.
Motion to set aside judgment. Catoosa Superior Court. Before Judge Fariss.
Wayne Snow, Jr., Frank M. Gleason, for plaintiff in error.
John E. Wiggins, Wood, Wheat Parker, Robert Wheat, contra.
The court erred in sustaining the general demurrer to the motion to set aside the judgment.
DECIDED OCTOBER 31, 1961.
Irma Fisher brought a suit in the Superior Court of Catoosa County on November 16, 1960, against Louise Crowe and her son, Joe Crowe, a minor 14 years of age, for damages for the value of the life of her minor son, Billy Fisher. The plaintiff alleged in her petition that the joint and concurring acts of gross negligence on the part of Louise Crowe and her son, Joe Crowe, were the proximate cause of injuries which resulted in the death of her son, Billy Fisher.
The deceased with three other boys, including Joe Crowe, were truants from the Lakeview School. They left the school during a recess period in an automobile owned by Louise Crowe. As the automobile which Joe Crowe was driving entered a sharp curve, it struck a telephone pole and wall. Billy Fisher, who was riding in the back seat, died shortly after the vehicle struck the telephone pole and wall.
The plaintiff alleged in her petition certain acts of negligence against Joe Crowe in the operation of the automobile. She also alleged that Louise Crowe maintained and furnished the automobile as a family-use car; that Joe Crowe was the agent and servant of Louise Crowe while operating the automobile at the time of the collision; that the brakes of the automobile were worn and in an unsafe condition, which was known to Louise Crowe prior to the time she allowed her son, Joe Crowe, to drive it, and that Louise Crowe was guilty of gross negligence in permitting her minor son to operate the vehicle, well knowing at the time that he was incapable of operating said vehicle by reason of his age, physical condition and mental immaturity.
The case was tried and a verdict was returned in favor of the plaintiff against both defendants, and a judgment was duly entered in accordance with the verdict.
On December 22, 1960, the defendants filed a joint motion to set aside the judgment on the grounds, (a) that no guardian ad litem was ever appointed to represent the minor defendant, and (b) that the minor defendant was not served personally with a copy of the petition and process as required by law.
The movant contends that the judgment is a single and indivisible judgment against joint tortfeasors, and because such judgment was void as to the defendant Joe Crowe, it was, and is, void as to the defendant Louise Crowe.
When the motion came on to be heard, it was stipulated that Joe Crowe was a minor 14 years of age at the time the suit was filed and that no guardian ad litem had ever been appointed to represent him in the litigation. The judgment was set aside as to him.
The plaintiff demurred to the motion to set aside the judgment as to the defendant Louise Crowe. The court sustained the demurrer and dismissed the motion as to Louise Crowe. This ruling is assigned as error.
There was no appeal from the judgment setting aside the judgment as to the minor defendant Joe Crowe. The sole question for our consideration is whether the single judgment rendered against Louise Crowe and Joe Crowe based upon a tort action must be set aside as to Louise Crowe, since it has been set aside as to Joe Crowe. Under the common law a judgment was regarded as an entirety which must stand or fall in toto. 143 A.L.R. 7; 39 Am. Jur. 49, New Trial, § 25; 3 Am. Jur. 694, Appeal Error, § 1186.
In Southeastern Truck Lines v. Rann, 214 Ga. 813, 817 ( 108 S.E.2d 561), the Supreme Court of this State, in a unanimous decision, held: ". . . a verdict and judgment rendered against two or more joint tortfeasors is single and indivisible, and must stand or . . . fall in toto." See also cases therein cited.
Defendant in error contends that the rulings in Kitchens v. Hutchins, 44 Ga. 620, and Stanford v. Bradford, 45 Ga. 97, require a holding that a judgment against two defendants in a suit based upon an action sounding in tort may be set aside as to one without affecting the validity of the judgment against the other defendant. In 1820 the legislature modified the common-law rule with reference to actions against joint contractors. This statute has been codified as Code § 3-301, which provides, in part: "When two or more joint contractors, or joint and several contractors, or copartners shall be sued in the same action, and service shall be perfected on one or more of said contractors or copartners, and the officer serving the writ shall return that the rest are not to be found, plaintiff may proceed to judgment and execution against the defendants served with process, in the same manner as if they were the sole defendants;. . ."
In Sanders v. Etcherson, 36 Ga. 404, the court specifically made reference to the act of 1820 (now Code § 3-301) as authority for its holding. Each of the above mentioned cases relied upon by the defendant in error originated out of a suit on contract and are, therefore, distinguishable from the rule governing the instant case. Our decision in this case is controlled by Southeastern Truck Lines v. Rann, 214 Ga. 813, 817, supra, and cases cited therein.
Defendant in error contends that since the defendant Joe Crowe was not served with copy of process and petition, he was not a party to the suit; however, this defendant is a party to the judgment regardless of whether he was a party to the suit.
In Harralson v. McArthur, 87 Ga. 478, 481 ( 13 S.E. 594, 13 LRA 689), it was stated: "This was an action against several defendants, including the plaintiff in error, some of whom were not served at all and never had their day in court. The verdict and judgment being a joint one in favor of the plaintiff against all the defendants, ought not to stand. . . If the plaintiff had obtained judgment against those defendants only who were served, it may have been valid as to them; but inasmuch as the judgment is against all the defendants, including those not served, we are clear it should be set aside."
Judgment reversed. Nichols, P. J., and Jordan, J., concur.